The United States Supreme Court has established a new constitutional remedy—to challenge the results of a plea bargain that was accepted or rejected because of bad legal advice. In a pair of cases from Missouri and Michigan, a divided Supreme Court ruled that when a lawyer representing a criminal defendant acts incompetently when advising whether to accept or reject a plea bargain, the accused’s constitutional rights have been violated. These decisions will have an important and immediate impact on the 95% of federal convictions and 94% of state convictions that stem from guilty pleas.

In the Missouri case, Missouri v. Frye, the defendant was charged with driving on a revoked license. Three previous convictions on the same charge meant he could be sentenced to up to four years in prison. Court records show he was not told about two pretrial plea bargain offers that would have reduced his jail time. A week before his preliminary hearing, the man was again arrested on the same offense. With no deal on the table, he subsequently plead guilty and received three years imprisonment.

Writing for the 5-4 majority, Justice Kennedy held that the Sixth Amendment’s constitutional protection against ineffective assistance of counsel applies during plea deal proceedings. Defense counsel must now relay plea bargain offers from the prosecution, regardless of whether the lawyer believes them to be proper.   Pennsylvania has always required lawyers to convey offers to their clients, but the change will be in the cases where a Pennsylvania Criminal Defense Attorney makes a mistake in recommending whether to accept a plea bargain.

In the related Michigan case, Lafler v. Cooper, the defendant was convicted of assault with intent to murder, among other charges, after shooting and seriously wounding a woman. The state twice offered to dismiss two of the charges, and recommended a reduced sentence in return for a guilty plea. The defendant claimed that he rejected the offers after his lawyer incompetently convinced him that the prosecution could not prove the most serious charge. The defendant was convicted and received 185 to 360 months behind bars.

In another 5-4 decision, the Supreme Court applied a “but-for” test to situations where a defendant claims his counsel’s ineffective advice led him to reject a plea offer and ultimately stand trial. That is, if the defendant can show “but-for” counsel’s ineffective advice, the accused would have accepted the plea bargain and the judge would have approved it, the judge has wide discretion as to how to proceed. This includes the possibility of directing prosecutors to reoffer the plea proposal in circumstances where it contemplated a plea to less serious counts than those on which the defendant was convicted at trial.

A plea bargain is a critical step in anyone’s criminal defense. These cases are yet other examples of why it is critical to hire an experienced criminal defense lawyer.

The Connecticut Senate voted this morning to abolish the Death Penalty in that state.   The Governor quickly went on record to make it very clear that he intends to sign the bill.   He stated that the Death Penalty is not workable at all in Connecticut.  One can easily draw a parallel to Pennsylvania, which spends millions, if not hundreds of millions of dollars, annually, in support of a penalty that is never executed in Pennsylvania.   We have repeatedly suggested that it does not matter if you are for or against the Death Penalty on a moral basis – it simply cannot stand a cost-benefit analysis instituted by any rational person.   Pennsylvania has easily spent hundreds of millions over the last couple decades, in pursuit of the Death Penalty, without executing anyone.  Why bother?  Studies have shown there is little, if any deterrent effect.  A much better and more cost-effective deterrent would be to spend more on community programs or increased patrols in high-crime areas.   Many suburban Philadelphia communities, like Norristown, Chester, Bensalem and others would benefit greatly from increased patrols and community infrastructure, but instead our governments are wasting the money pursuing a penalty that is never implemented.

We are often asked by those recently arrested whether they should even bother looking for a job in light of the arrest. Pennsylvania employers are forbidden from considering a “mere arrest” when making hiring decisions.  18 Pa.C.S.A. § 9125 permits employers to consider felony and misdemeanor convictions as they relate to the type of employment at issue.  By implication, this forbids consideration of arrests that have not yet resulted in conviction. See Cisco v. United Parcel Services, 476 A.2d 1340 (Pa. Super. 1984) (holding that the employer in that case could consider the arrest because it occurred in connection with employment at that employer and impacted the employer’s reputation directly). Further, anyone denied a job in Pennsylvania based on criminal history information must be so advised in writing.

If you have been denied employment because of an arrest that did not result in conviction prior to the denial, or based upon a conviction that was not related to your employment, you should contact our lawyers to discuss whether the denial of employment was lawful, and if not, whether you may have a valid cause of action against the employer.  We have handled cases where potential employees who were unlawfully denied employment because they were not yet convicted have won years of salary from the putative employers.  Had they not contacted us they never would have known they had this option.

There are other cases, statutes, and analyses of this situation so you are encouraged to contact us for a free consultation to further clarify the facts of your particular case.

Pennsylvania has finally established a procedure to pay any Court in the state for fines, costs, and restitution online via one unified website.  As a result, someone whose license has been suspended because of violations ten years ago in four different counties now need only go to one site and resolve it all online.  In the past, resolution of  such issues would require multiple phone calls and perhaps visits all across the state to make the payments.  The new site will permit payments for every court in the state, whether at the Magisterial District Judge level or at the Courts of Common Pleas.  Both credit cards and debit cards will be accepted directly through the site.  The new process is called EPay and a fact sheet on the site is available at http://ujsportal.pacourts.us./RefDocuments/ePayBrochure.pdf

Remember that Pennsylvania has a statewide prohibition against texting while driving that takes effect today. The ban prohibits sending, reading, or writing text-based communications from smartphones and other devices while driving. It does not apply to making telephone calls from a handheld cellphone, which will make enforcement difficult. To make a valid stop, a Pennsylvania officer will have to see the person manipulating the phone without ever raising it to talk and be able to articulate a reasonable belief that the person was doing something prohibited as opposed to entering a phone number and making a call.  I had heard officers say that they will know the person is not making a call if the phone is not raised to the ear, but I am not sure that is fair given the prevalence of bluetooth devices in Pennsylvania these days.

It is important to note that the ban does not extend to GPS devices or systems integrated into the vehicle, that the police can’t seize the phone, that there is a $50 fine per violation but no points, and that this is a primary offense which can constitute the sole basis for a police officer making a car stop.

I have yet to see anything defining “operation” of a vehicle.  Pennsylvania Courts have repeatedly held that a person can be operating a vehicle while it is stopped, idling, and sometimes even while turned off and parked in the DUI context.  It is hard to believe that they will penalize texting while parked, since no harm would be likely to result from that, but the law does not make that clear.

It is helpful to read the actual text of the law which appears below.